MacTate v. State, 570S112
| Decision Date | 02 March 1971 |
| Docket Number | No. 570S112,570S112 |
| Parties | Donald MacTATE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Ralph O. Lafuze, Hagerstown, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by affidavit with the crime of robbery. Upon a plea of not guilty, trial was had before a jury and appellant was found guilty as charged and sentenced to the Indiana State Prison for a term of not less than ten (10) nor more than twenty-five (25) years.
Two questions are raised for our consideration of this appeal, one of which involves the sufficiency of the evidence. We will therefore briefly recite that evidence most favorable to the state. In the early morning hours of January 22, 1969, one Walter Morgan was working at the Golden Imperial Service Station in Richmond, Indiana when two men entered the station, one of whom was later identified to be appellant. Appellant's accomplice asked the attendant for some cigarettes. At about this time, appellant, who was standing somewhat to the right and behind Morgan, poked a knife in Morgan's back side and asked for his money. Morgan hesitated momentarily and appellant said, 'I mean it.' By turning slightly, Morgan was able to see about four inches of knife blade and testified that the knife appeared to be a kitchen knife. Morgan placed the money on a desk top and appellant instructed his accomplice to pick it up. During the course of these events, appellant made several threats on Morgan's life but his accomplice attempted to calm him, reminding him that their only interest was in the money.
Appellant's first contention is that the evidence is insufficient to support the verdict in that at no time did Morgan testify that he was in fear. An admission by the victim at trial that he was put in fear, however, is not an essential element in proving robbery if there is substantial evidence of probative value from which the jury might reasonably have inferred that the victim was in fact put in fear. Here there clearly was ample evidence from which the jury might reasonably have drawn such an inference. Morgan, alone in a service station late at night, was approached by two men and asked for his money; one, the appellant, had a knife which he stuck in the victim's back; Morgan testified that he was able to observe the knife and did so prior to handing any money over to the men. Clearly, his being put in fear was an inference warranted by the evidence.
Secondly, appellant asserts that the sentence imposed by the trial court was incorrect in that the penalty imposed was greater than that which could have been imposed had appellant been charged with committing a felony while armed. With this we must agree. As previously noted, appellant was sentenced to the Indiana State Prison for a period of not less than ten nor more than twenty-five years. Such a sentence is clearly improper...
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